Kavanaugh: A Threat to Women and Our Constitutional Right to Privacy

The danger that Judge Brett Kavanaugh poses to reproductive health and freedom in the United States cannot be overstated. It cannot be over-publicized, over-discussed, over-analyzed, or over-protested. His nomination to the Supreme Court of the United States will not only threaten the rights of women to control our own bodies but ultimately endanger our health and lives.

As a young, female college student, I am entirely unsure of what I want my future to look like, or what I want to do with my life. I barely chose a major on time, because I had no idea what direction to take my education in. The one thing I do know, however, is that if something were to go wrong and I should find myself in an emergency situation, I have the right to choose to end an unplanned and unwanted pregnancy. Simply knowing that I have that option, that choice, is my right, and the right of all women.

Kavanaugh represents the fulfillment of a promise made by President Donald Trump – to elect only pro-life justices to the Court to ensure the overturn of Roe v. Wade, the 1973 case that legalized abortion nationwide as guaranteed by a woman’s right to privacy under the due process clause of the 14th Amendment to the U.S. Constitution. Unless we take actions, it won’t matter that the majority of Americans don’t want to see Roe overturned, or that Roe is established precedent, or that outlawing abortion will have a worse effect on low-income women and women of color. The current conservative administration wants to dismantle all protections established by Roe, and Kavanaugh is their wrecking-ball.

Several conservatives have denounced the uproar around the threat to Roe as nothing more than a scare tactic for the Democrats to oppose a conservative appointment to SCOTUS, arguing that since Kavanaugh has not expressly voiced his intention to overturn this decision then it remains only speculation. However, Kavanaugh’s past record makes it absolutely clear that Roe is under a serious threat. In the case of Garza v. Hargan in 2017, Judge Kavanaugh was part of the original three-judge panel that ordered delays in the attempts of an undocumented minor, Jane Doe, to receive an abortion. When the full D.C. Circuit Court overruled these orders, Kavanaugh, along with two other judges, dissented; he argued that the decision equated to offering “abortion on demand” to undocumented immigrants. Kavanaugh’s stance speaks volumes about the way he views abortion – not as a right to be protected, but an act to be barred, even when a woman’s life is on the line. If Kavanaugh is confirmed to the Supreme Court and an abortion case is brought before him, his past record shows us exactly how he will vote. Against women.

But the implications of Kavanaugh’s stance on reproductive freedom go far beyond just outlawing abortion. He threatens its very judicial foundations – the right to privacy. The concept of the right to privacy has its origins in the 1965 Griswold v. Connecticut decision, which determined laws banning contraception were unconstitutional as they violated a right to privacy concerning intimate and personal matters. Roe emphasized this right to personal privacy under the protection of the 14th Amendment guarantees of personal liberty and restrictions upon state involvement in the life of an individual. In short, abortion is guaranteed under our rights to live without state interference. I have the right to make my own choices, without the government making them for me.

Kavanaugh wants to deny us that right. In September of 2017, he delivered a speech at the American Enterprise Institute, a Washington, D.C. conservative think tank, in which he characterized the right to privacy as a creation of a ‘“tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history or tradition.” He views the right to privacy as an erroneous concept, a mistake of judicial interpretation. In his interpretation of the Constitution, the right to privacy does not exist – and neither does the right to have an abortion.

Kavanaugh represents the moment the conservative, anti-abortion movement has been waiting for: the possibility of a conservative administration, a Republican-controlled Congress, and a conservative majority on the highest court, all coming together to overturn Roe and finally make abortion illegal. These anti-choice groups fail to realize, however, that making access to a safe abortion illegal will not stop abortion but instead will endanger the health and lives of women who will turn to dangerous back-alley methods. An overturn of Roe would leave the individual states to decide on the legality and accessibility of abortion; the Center for Reproductive Rights estimates that with an overturn of Roe, about 21 states would immediately make abortion illegal. Women in those states would have no access to a safe abortion, even in cases of rape, incest, or if the mother’s life is in danger. And if a neighboring state offered legal abortion, low-income women may not have the time, resources, or availability to drop everything and drive hours for the procedure – and that’s not even considering if the neighboring state has time restrictions or mandatory delays attached.

Even without a full overturn of Roe, it is likely that abortion rights and access will be even more heavily restricted and policed. Mandatory parental notification, excessive waiting periods, expensive pre-abortion counseling – all are just ways to interfere with a woman’s right to choose and make abortion inaccessible to those who can’t drive across states, afford to take three days off work, or tell their parents without fear. With Kavanaugh on SCOTUS, any future decision on abortion will almost certainly restrict our healthcare and abortion rights under federal law.

Abortion is our constitutional right, plain and simple. A woman’s right to live, to control her own body, is protected by the Constitution and cannot be taken away. Any infringement upon a woman’s right to choose should not be tolerated. As a young woman, I refuse to let a white man named Brett take away my right to privacy, my right to access a safe abortion should I need it, and my right to access reproductive healthcare without state intervention – and there are millions of other women who stand with me. Sorry Kavanaugh, but we’re calling our senators, holding protest signs, and bringing you down.

Grace W., is a Development Intern at the National Organization for Women (NOW) in Washington, DC. She is a student at Davidson College